Maddux v. State

CAMPBELL, Justice,

concurring.

The issue before the Court is whether two questions propounded to the venire panel by appellant’s trial counsel constituted an effort to commit the veniremembers to a specific set of facts. I wholly agree with the majority opinion that the questions involved, in no way sought to commit the veniremembers to a certain set of facts. I also agree that our holding in Nunfio v. State, 808 S.W.2d 482 (Tex.Cr.App.1991) applies to both testifying and nontestifying witnesses (and in cases such as this, victims). I write separately, however, to emphasize that our holding today should not be interpreted as an abrogation of the rule prohibiting attorneys from attempting to commit prospective jurors to a certain verdict based upon a particular set of facts. See Williams v. State, 481 S.W.2d 119, 121 (Tex.Cr.App.1972).

Whether a certain question constitutes an effort to commit the venireperson to a verdict based upon particular facts will depend upon the manner in which the question is phrased and/or the amount of detail placed in the question. A brief review of some of this Court’s past opinions pertinent to this issue provides illustrative examples of what constitutes both proper and improper questions.

In Alldridge v. State, 762 S.W.2d 146 (Tex.Cr.App.1988), cert. denied, 489 U.S. 1040 , 109 S.Ct. 1176 , 108 L.Ed.2d 238 (1989) and White v. State, 629 S.W.2d 701 (Tex.Cr.App.1981), cert. denied, 456 U.S. 938 , 102 S.Ct. 1995 , 72 L.Ed.2d 457 (1982), this Court was faced with questions which clearly constituted improper attempts to commit the prospective jurors to a particular position.

In Alldridge the issue arose in an appeal from a capital murder conviction. At trial, appellant’s attorney asked a prospective juror, “Tell me what type of cases you think should always result in the death penalty?” 762 S.W.2d at 164 . This Court held that appellant “made no showing that the question he sought to ask was proper.” Id. It is clear to me that asking prospective jurors to state which cases would always cause them to vote a certain way constitutes an improper attempt to commit the prospective jurors to a certain position regarding particular sets of facts.

In White , the issue also arose in an appeal from a capital murder conviction. During voir dire,

[t]he appellant asked the venire member if he would be unable to consider the penalty of confinement for life if it were proved that the defendant went into a store, “attempted to rob it or robbed it,” aimed a pistol at a woman’s head at short range and shot her, killing her instantly, and if the woman’s husband testified to that.

629 S.W.2d at 706 . The trial court sustained the State’s objection, but “permitted [appellant] to ask if the venire member could return a verdict of life in prison if it were provéd that a defendant shot someone in the head in the course of committing a robbery.” Id. This Court held not only that no error had been committed by refusing to allow the appellant to ask “a hypothetical question ... based on the facts peculiar to the case,” but also that “the question that was permitted *600 had more details than the appellant was entitled to ask.” Id.

While our opinions in Allridge and White illustrate questions that were clearly improper, the opinion in Hernandez v. State, 508 S.W.2d 858 (Tex.Cr.App.1974) provides a good example of a proper question that the trial court erroneously prohibited the appellant from asking. In Hernandez , appellant wanted to ask the venire, “Is there any member of the panel who, regardless of what the evidence showed in any case, could not believe that a police officer was telling a willful falsehood from the witness stand?” 508 S.W.2d at 854 . In concluding that the question was proper, we contrasted our prior holding regarding a similar question 1 propounded in Hunter v. State, 481 S.W.2d 137 (Tex.Cr.App.1972). In Hernandez , this Court stated that

[o]ur opinion [in Hunter ] emphasized that the question was improper as framed, and by this emphasis clearly implied that such a question would not be per se improper. The question [in Hunter ], by its specificity, clearly required a prospective juror to commit himself in answering it. The question in the instant case, however, merely inquires of a prospective juror, in general terms, whether he could conceive of the possibility that a police officer-witness might lie from the stand.

Id. (Emphasis in original).

Likewise in this case, appellant’s questions inquired in general terms whether the veniremembers could consider probation where the murder victim was a child. Unlike the situation in Allridge, appellant herein in no way tried to commit the veniremembers to a verdict that they would “always” follow. Unlike the situation in White , appellant did not go into any specific detail about the victim or the manner in which the crime was committed. Also, asking the veniremembers to “consider” a certain course of conduct in no way constitutes an attempt to commit them to follow that course of conduct.

Finally, I have no doubt that trial courts will continue to be faced with situations where reasonable minds could differ as to whether a question is proper or improper. Unfortunately, I can conceive of no bright line rule for determining when a question contains too much detail or seeks to commit the venire to a particular answer. Due to the very nature of the issues involved, these decisions will require review on a case-by-case basis.

With these comments, I concur in the majority opinion of the Court.

MeCORMICK, P.J., and WHITE, J., join.

. In Hunter , the appellant sought to ask the veni-re, "By virtue of your personal knowledge of the truthfulness of Mr. Booe, would you place greater credence on his testimony than you would on someone who contradicted him whom you did not know?” 481 S.W.2d at 138.